Citation Nr: 0200288
Decision Date: 01/10/02 Archive Date: 01/16/02
DOCKET NO. 01-03 525 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Houston,
Texas
THE ISSUE
Entitlement to service connection for degenerative disc
disease of the lumbar spine.
REPRESENTATION
Appellant represented by: Texas Veterans Commission
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Mark J. Swiatek, Counsel
INTRODUCTION
The veteran had active military service from October 1965 to
October 1967.
The current appeal arose from a June 2000 rating decision by
the Department of Veterans Affairs (VA) Regional Office (RO)
in Houston, Texas. The RO denied entitlement to service
connection for a back injury.
The veteran provided oral testimony before the undersigned
Member of the Board of Veterans' Appeals (Board) via a video
conference with the RO in October 2001, a transcript of which
has been associated with the claims file.
FINDING OF FACT
The competent medical evidence does not establish a nexus
between the current degenerative disc disease of the lumbar
spine and the low back strain reported during the veteran's
military service.
CONCLUSION OF LAW
Degenerative disc disease of the lumbar spine was not
incurred in or aggravated by active service. 38 U.S.C.A.
§§ 1110, 5107 (West 1991 & Supp. 2001); 38 C.F.R. § 3.303
(2001); 66 Fed. Reg. 45,620 (Aug. 29, 2001) (to be codified
at 38 C.F.R. §§ 3.102, 3.156(a), 3,159 and 3.326(a)).
REASONS AND BASES FOR FINDING AND CONCLUSION
Factual background
The veteran's service medical records show he was treated on
one occasion in March 1967 for low back pain that reportedly
was present for one day and aggravated by sitting. The
impression was lumbosacral strain and he was given
medication. On the medical examination in September 1967 for
separation, he gave a history of recurrent back pain. The
examiner's elaboration referred to recurrent back pain from
strain. The clinical evaluation showed a normal spine and
there was no entry regarding the spine in the summary of
defects and diagnoses.
The veteran supported his initial application for VA
disability compensation in April 2000 with copies of private
medical treatment records beginning in 1991. The records
were from the treatment provider he identified on the
application form. In the VA benefit application he claimed
he sustained a back injury in Vietnam in 1966.
The medical reports show he was seen in 1991 with the
complaint of chronic back pain that had flared recently. The
impression was low back strain. In January 1996 he was seen
with the complaint of recurring back pain. It was noted he
exercised regularly and had lifted something at the gym. The
impression was lumbar strain. In April 1998 he was seen with
a complaint of low back pain mainly at night. It was
reported that he had hurt his back a long time ago in high
school and then again in the service. The impression was low
back, actually resolving.
The records show that in June 1998 he was seen with radiating
low back pain. It was reported that when seen in April he
was doing better but a month previously he had to push
something in a truck and the back flared again. The
impression was low back pain. On the clinical record it was
noted that an X-ray of the lumbar spine was within normal
limits with few degenerative changes. The X-ray from June
1998 was interpreted by the reader as showing degenerative
disc disease at the L4-L5 level with anterior spurs.
The veteran argued in his substantive appeal that the service
medical records showed he was seen for his back in service
and that his discharge physical noted he had chronic back
pain.
A VA examiner in May 2001 reported the veteran took no
medication on a regular basis other than an occasional over
the counter antiinflammatory, that he related a history of
back difficulty to military service and denied the history of
an injury in high school that was in the record. He recalled
the circumstances of his back injury in service and
treatment. He reported he never sought physical attention
again afterward and then began to seek follow-up in the mid
1970's for recurrent episodes of back pain.
The veteran also reported a back injury on the job in 1995
after which he was off work for about a month. According to
the examiner's report he had not missed work since and
currently he had back pain that increased at night or with
prolonged sitting. An X-ray was read as showing degenerative
changes especially in L4-L5 with disc space narrowing and
osteophyte formation. The examiner characterized the changes
as moderately severe. The impression was history of low back
pain and lumbar spine degenerative disc disease.
The examiner opined that the current disability of the back
was separate from that noted in service as low back pain.
The examiner opined further that the separation examination
and the remainder of his medical records give no indication
of a chronic condition.
At the Board hearing, the veteran recalled the injury in
service, treatment at a dispensary but no hospitalization
(Transcript (T) 2-3). He recalled he did not have a physical
examination before he left the military service, but that he
had back pain once in a while, but not everyday, and did not
have further treatment in service (T 4-5). The veteran
recalled seeing a doctor several years after service, that
records were not available and he did not remember whom he
had seen. He stated he had the records from his treatment
since 1991 (T 5).
The veteran stated that he had not discussed the origin of
his back problems with his physicians and that they had not
given him an opinion as to the cause of the current back
problem. He said that recently they told him he had lumbar
sprain (T 7-8). He described a work place injury of the back
several years previously as a pulled muscle that caused him
to miss several weeks of work (T 8).
On direct questioning the veteran stated that no medical
doctor had stated his degenerative disc disease was related
to his military service on any basis although he related that
he hurt his back during military service. He stated that he
did not have a problem all the time, but it depended on how
hard he had worked.
He recalled not having much of a problem when he was younger,
but that more problems occurred with age (T 10-11). He
stated that he did not have any further information from his
doctor and would not have any to bring forth (T 11).
Criteria
Service connection may be granted for a disease or injury
incurred in or aggravated by active service in line of duty.
38 U.S.C.A. § 1110.
Service connection may be granted for any disease diagnosed
after discharge, when all the evidence, including that
pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d).
Service connection connotes many factors but basically it
means that the facts, shown by evidence, establish that a
particular injury or disease resulting in disability was
incurred coincident with service in the Armed Forces, or if
preexisting such service, was aggravated therein.
This may be accomplished by affirmatively showing inception
or aggravation during service or through the application of
statutory presumptions. Each disabling condition shown by a
veteran's service records, or for which he seeks a service
connection must be considered on the basis of the places,
types and circumstances of his service as shown by service
records, the official history of each organization in which
he served, his medical records and all pertinent medical and
lay evidence. Determinations as to service connection will
be based on review of the entire evidence of record, with due
consideration to the policy of the Department of Veterans
Affairs to administer the law under a broad and liberal
interpretation consistent with the facts in each individual
case. 38 C.F.R. § 3.303(a).
In determining whether an injury or disease was incurred in
or aggravated in service, the evidence in support of the
claim is evaluated based on the places, types and
circumstances of service as shown by service records, the
official history of each organization in which the veteran
served, the veteran's medical records, and all pertinent
medical and lay evidence. 38 U.S.C.A. § 1154(a); 38 C.F.R.
§§ 3.303(a), 3.304.
With chronic disease shown as such in service (or within the
presumptive period under § 3.307) so as to permit a finding
of service connection, subsequent manifestations of the same
chronic disease at any later date, however remote, are
service connected, unless clearly attributable to
intercurrent causes. Continuity of symptomatology is required
only where the condition noted during service (or in the
presumptive period) is not, in fact, shown to be chronic or
where the diagnosis of chronicity may be legitimately
questioned. When the fact of chronicity in service is not
adequately supported, then a showing of continuity after
discharge is required to support the claim. 38 C.F.R.
§ 3.303(b).
When all the evidence is assembled, VA is responsible for
determining whether the evidence supports the claim or is in
relative equipoise, with the appellant prevailing in either
event, or whether a preponderance of the evidence is against
a claim, in which case, the claim is denied. Gilbert v.
Derwinski, 1 Vet. App. 49 (1990).
The Secretary shall consider all information and lay and
medical evidence of record in a case before the Secretary
with respect to benefits under laws administered by the
Secretary. When there is an approximate balance of positive
and negative evidence regarding any issue material to the
determination of the matter, the Secretary shall give the
benefit of the doubt to the claimant. 38 U.S.C.A. § 5107
(West Supp. 2001); 38 C.F.R. §§ 3.102, 4.3 (2001).
In the consideration of appeals, the Board is bound by
applicable statutes, regulations of the Department of
Veterans Affairs, and precedent opinions of the General
Counsel of the Department of Veterans Affairs. The Board is
not bound by Department manuals, circulars, or similar
administrative issues. 38 C.F.R. § 19.5.
Analysis
Duty to Assist
There have been changes in the law during the pendency of
this appeal. On November 9, 2000, the President signed into
law the Veterans Claims Assistance Act of 2000 (VCAA). Among
other things, this law redefines the obligations of VA with
respect to the duty to assist and supersedes the decision of
the Court in Morton v. West, 12 Vet. App. 477 (1999),
withdrawn sub nom. Morton v. Gober, 14 Vet. App. 174 (2000)
(per curiam order).
The Board observes that the appellant has not indicated at
any stage in this appeal that pertinent evidence exists, or
was brought to the attention of the RO or the Board, but not
requested. The RO has assisted the veteran in developing
pertinent facts. For example, the RO letter in May 2000
advised him of the type of evidence needed to support the
claim, in particular nexus evidence, and the information
needed to contact VA regarding the claim. He did not
formally respond to this letter. The RO furnished him with a
copy of the pertinent rating decisions that explained the
reasoning for the RO decision.
The statement of the case and a supplemental statement of the
case also explained the basis for the determination in his
claim. The RO obtained his service medical records, and the
veteran submitted duplicates of these records. The RO
assisted him by forwarding his record to a VA examiner who
was asked to review the record and opine as to whether a
current disability of the back was related to the low back
pain in military service. The veteran was afforded a Board
hearing where he offered testimony regarding his back
disorder and indicated there was no additional evidence when
questioned about pertinent medical evidence.
The case does not turn on a purely legal question, which the
VCAA does would not affect. See for example Dela Cruz v.
Principi, 15 Vet. App. 143, 149 (2001). The Board finds that
VA can provide no further assistance that would aid in
substantiating the claim for service connection of
degenerative disc disease of the lumbar spine. The appellant
has not indicated the likely existence of any evidence that
has not already been obtained or provided that would be
crucial in the claim from the standpoint of substantiating
compliance with the applicable law or VA regulations for
basic entitlement. McKnight v. Gober, 131 F.3d 1483 (Fed.
Cir. 1997); Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997).
No other relevant or outstanding records have been mentioned
to warrant expenditure of additional adjudication resources.
Baker v. West, 11 Vet. App. 163, 169 (1998); Grivois v.
Brown, 6 Vet. App. 136, 139 (1994); Gobber v. Derwinski, 2
Vet. App. 470, 472 (1992). The appellant has not disputed
that VA has completed the development required. See Dixon v,
Gober, 14 Vet. App. 168, 173 (2000); Davis v. West, 13 Vet.
App. 178, 184 (1999); Earle v. Brown, 6 Vet. App. 558, 562
(1994). The VA examiner was aware of the veteran's history
and reviewed the claims file. The examiner did not indicate
that information regarding the work place injury in the mid
1990's was crucial to the opinion or that such would
necessarily be helpful in the opinion process. Further, the
veteran did not remember who had provided remote treatment.
Thus, the Board finds that the relevant evidence available
for an equitable resolution of the appellant's claim has been
identified and obtained.
The Board finds, therefore, that VA has fulfilled its
obligation to the appellant, informing him of the reasoning
against the claim, arranging personal hearings and providing
the pertinent VA regulations. The Board has not overlooked
the recently published VA regulations that implement the
VCAA. See 66 Fed. Reg. 45,620 (Aug. 29, 2001) (to be
codified at 38 C.F.R. §§ 3.102, 3.156(a), 3,159 and
3.326(a)). However, these provisions do not provide any
rights other than those provided by the VCAA. 38 U.S.C.A. §§
5100, 5102, 5103, 5103A and 5107 (West Supp. 2001).
In view of the foregoing, the Board finds that the appellant
will not be prejudiced by its actions, and that a remand for
adjudication of his claim by the RO under the new law would
only serve to further delay resolution of the claim. See
Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993).
Service connection for degenerative disc disease
The standard for a claim to be granted requires generally (1)
competent evidence of a current disability usually shown by a
medical diagnosis. Brammer v. Derwinski, 3 Vet. App. 223,
225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144
(1992); (2) incurrence or aggravation of a disease or injury
in service (lay or medical evidence) Layno v. Brown, 6 Vet.
App. 465, 469 (1994); Cartright v. Derwinski, 2 Vet. App. 24,
25 (1991); and (3) a nexus between the in-service disease or
injury and the current disability that must be shown by
medical evidence. Lathan v. Brown, 7 Vet. App. 359, 365
(1995); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). See
generally Caluza v. Brown, 7 Vet. App. 498 (1995).
Although the claim need not be conclusive, it must be
accompanied by supporting evidence that is sufficient to
invoke the benefit of the doubt rule. An allegation alone is
not sufficient but competent evidence in relative equipoise
would generally suffice. Tirpak v. Derwinski, 2 Vet.
App. 609, 611 (1992).
The truth of the evidence is presumed unless the assertion is
inherently incredible or beyond the competence of the person
making the assertion. Robinette v. Brown, 8 Vet. App. 69,
77-8 (1995); King v. Brown, 5 Vet. App. 19, 21 (1993). For
example where a lay person opined in matters of medical
diagnosis or medical nexus.
Applying this standard to the facts of the veteran's case
supports the conclusion that the competent evidence
preponderates against service connection. The Board has
noted the representative or the veteran did not object to the
adequacy of the VA examination. It appears that the examiner
adequately accounted for the history as provided by the
veteran and through a review of the record having noted
conflicting information regarding a back injury before
military service. The examiner appeared to base his opinion
regarding a nexus to service upon a review of the entire
record. This opinion with the other evidence supports an
informed determination.
The RO was very conscientious as evidenced by the medical
opinion obtained. The Board will point out that lay
assertions cannot constitute competent evidence in most
instances, particularly in matters requiring medical nexus
evidence. See for example Savage v. Gober, 10 Vet. App. 488
(1997), recently clarified in Voerth v. West, 13 Vet. App.
117 (1999). This would apply to the veteran's assertion that
the service medical records showed a chronic disorder. The
VA examiner refuted this assertion based upon history with
benefit of the claims folder. The Board observes that the
examiner reviewed the case and opined against a nexus to
service.
The Board must point out that the record does not include an
opinion favorable to the claim or one that contradicts or
leads the Board to reasonably call into question the recent
VA opinion against the claim. The appellant stated that no
favorable opinion had been rendered and his testimony noted
the personal physicians apparently had not suggested any
connection after being made aware of his history.
The Board finds the VA opinion weighs against any support for
continuous symptomatology since service. McManaway v. West,
13 Vet. App. 60 (1999). The record shows an equivocal
history and there is no extant record until the early 1990's.
Although the separation medical examination included a
history of back pain, the spine was normal clinically and the
VA examiner found no support for the claimed chronicity based
on the record.
Thus, the VA examiner did not attach significance to
occasional back complaints in service and as reported after
service as an indicator of a nexus to service for the
veteran's degenerative disc disease. What is clear from the
opinion is there was no trauma to the spine or other incident
of service to account for the current underlying disability
of the lumbar spine which is identified as degenerative disc
disease. At the hearing the veteran mentioned arthritis, but
there was no contextual clarification as to the location and
the representative did not follow up on the matter (T 8). In
any event any question of arthritis was not subsumed in the
current adjudication.
The Board must point out that competent evidence linking
degenerative disc disease to service is not shown in the
record elsewhere. Such evidence has not been brought to the
Board's attention as being outstanding and available but as
yet not obtained. The evidence on file shows recognition of
the veteran's observation in service for back complaints and
thereafter. What it does not show is competent evidence of
chronic low back disability, the currently existing
degenerative disc disease, that is linked to service. Thus,
in view of the record as interpreted on the medical
examination, the back strain in service is reasonably
characterized as acute. It was not found on a complete
examination before his separation from service and the
current degenerative disc disease is not linked to the back
strain in military service by medical evidence.
The Board has thoroughly considered all of the evidence and
has not found any competent medical evidence linking the
claimed disorder to service or an in-service event of
occurrence. Further, the RO sought to obtain all pertinent
medical records and provided a VA examination that addressed
the question of a nexus to service for the low back disorder.
Thus the veteran has received the benefit of VA's duty to
assist. See Hickson v. West, 12 Vet. App. 247, 253 (1999).
Unfortunately, the record offers no support for service
connection. As with any piece of evidence, the credibility
and weight to be attached to medical opinions of record is an
adjudication determination. Guerrieri v. Brown, 4 Vet.
App. 467, 470-71 (1993). It is well established that lay
observation is not sufficient to establish a medical
diagnosis or causation.
The VA medical examiner carefully reviewed the facts of the
veteran's case and did not highlight any evidence to support
a finding in favor of a relationship between the veteran's
service and current degenerative disc disease. And, as noted
previously there has been no opinion offered to contradict
the conclusions of VA examiner against service connection.
Therefore, the Board finds that the VA opinion is entitled to
significant probative weight because of the specific analysis
and reasoned conclusions. Thus in light of an uncontradicted
medical opinion on the matter being considered, the evidence
viewed objectively is not at least in relative equipoise on
the question of whether the veteran's degenerative disc
disease of the lumbar spine is linked to service. Struck v.
Brown, 9 Vet. App. 145, 155 (1996); Owens v. Brown, 7 Vet.
App. 429, 433 (1995).
The Board views the foregoing discussion as sufficient to
inform the veteran of the elements necessary to complete his
application to reopen this claim. See Graves v. Brown, 8
Vet. App. 522 (1996); Robinette v. Brown, 8 Vet. App. 69, 77-
78 (1995); McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997);
Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997).
ORDER
Service connection for degenerative disc disease of the
lumbar spine is denied.
RONALD R. BOSCH
Member, Board of Veterans' Appeals